SC Administrative Law Court Decisions

Marlin Outdoor Advertising Ltd. (Marlin) challenges a decision by the South Carolina Department of Transportation (DOT) to cancel Marlin's sign permit #07-38-884643. DOT opposes Marlin's position and asserts that Marlin's sign permit was rendered void pursuant to S.C. Code Ann. § 57-25-150(G)(3) (Supp. 1999). DOT's disagreement with Marlin places jurisdiction in the Administrative Law Judge Division (ALJD). S.C. Code Ann. § 57-25-180(D) (Supp. 1999). After considering the evidence and arguments presented at the hearing of this matter on October 23, 2000, I find that DOT properly canceled Marlin's sign permit #07-38-884643.

The only issue raised is whether DOT's actions and statements serve to estop DOT from canceling Marlin's sign permit?

A. Positions of Parties

Marlin contends that actions and statements by DOT's employees caused Marlin to believe that its sign alterations to a recently acquired sign structure were legally permissible. Marlin argues that it relied to its detriment on DOT's representation since Marlin expended funds altering the sign consistent with DOT's instructions. Accordingly, Marlin argues that DOT is now estopped from canceling the sign permit.

DOT opposes Marlin's position. DOT asserts that Marlin's actions did not comport with the directions given to Marlin by DOT employees. In fact, DOT asserts Marlin disregarded DOT's instructions by dismantling of the sign. In DOT's view, Marlin's actions render the permit void.

B. Findings of Fact

I find by a preponderance of the evidence the following facts:

In March, 2000, Marlin made plans to purchase a permitted sign structure from Brabham Oil Co., Inc. (Brabham). The structure was located adjacent to the westbound side of I-26 in Orangeburg County, between U.S. Route 301 and Highway 33. The sign structure was considered a "nonconforming sign" under the Highway Advertising Control Act (S.C. Code Ann. § 57-25-110 et seq.). As part of the sign purchase, Marlin applied to DOT for transfer of the sign permit from Brabham to Marlin. DOT granted the transfer.

Prior to purchasing the sign and its location, Marlin contacted DOT employee David Lee to determine the legality of placing a new head on the existing sign structure. ⁽¹⁾ While a dispute exists on the totality of representations made by DOT to Marlin, I find the evidence clearly establishes one critical fact concerning DOT's representations to Marlin. Marlin never obtained permission from DOT to dismantle both poles of the structure.

On the contrary, DOT gave permission to Marlin to dismantle only one of the poles. Marlin dismantled the second pole based upon the opinion of Marlin's contractor who found that such an act was necessary to avoid a safety hazard. Not only was no affirmative permission obtained from DOT to dismantle the second pole, but also the dismantling was without DOT's prior knowledge.

On or about July 10, 2000, DOT's District Coordinator, Earl Hilton, found that Marlin had dismantled the sign structure and had begun the process of erecting a new structure. After a review of the circumstances, DOT Director of Outdoor Advertising, Keith Melvin, notified Marlin that its sign permit was canceled pursuant to S.C. Code Ann. § 57-25-150(G)(3) (Supp. 1999).

C. Conclusions of Law

Based on the Findings of Fact, I conclude the following as a matter of law:

1. Highway Advertising Control Act

The purposes of the Highway Advertising Control Act are to

prevent unreasonable distraction of operators of motor vehicles, prevent confusion with regard to traffic lights, signs, or signals, prevent interference with the effectiveness of traffic regulations, promote the prosperity, economic well-being, and general welfare of the State, promote the safety, convenience, and enjoyment of travel on and protection of the public investment in highways within this State, and preserve and enhance the natural scenic beauty or aesthetic features of the highways and adjacent areas.

S.C. Code Ann. § 57-25-130 (Supp. 1999). In keeping with these purposes, the Act phases out existing signs if those signs have been designated as "nonconforming signs."

All agree that the sign involved in this dispute is a nonconforming sign. Further, all agree that such a nonconforming sign is subject to significant limitations when one seeks to alter the sign since the nonconforming sign must remain substantially the same as it was on the effective date of the State law or regulations which rendered the sign nonconforming. 25A S.C. Code Ann. Regs. 63-350(C)(7) (Supp. 1999).

Consistent with that admonition, certain alterations to the sign by the permit holder are prohibited. For example, extension, enlargement, replacement, rebuilding, changing the materials of the sign structure's support, adding lights to an unilluminated sign, changing the height of the sign above ground or re-erection of the sign will make the sign illegal. Id.

Moreover, to assure the sign remains substantially the same as it was on the effective date of the State law or regulations which rendered the sign nonconforming, even maintenance to the sign is limited. Maintenance is limited to replacement of nuts and bolts; additional nailing, riveting or welding; cleaning and painting; manipulation to level or plumb the device, but not to the extent of adding guys or struts for stabilization of the sign or structure; and a change of the advertising message, including changing faces, as long as similar materials are used and the sign face is not enlarged. Id. If the sign face or faces are reduced, they may not thereafter ever be increased. Id. No maintenance may occur which will lengthen the life of the device. S.C. Code Ann. Regs. 63-350(C)(1) (Supp. 1999).

Finally, specific major alterations are identified and prohibited. For example, the voluntary removal of a nonconforming sign voids the permit and the removal, dismantling, or destruction by an act of God or vandalism renders the permit void. S.C. Code Ann. § 57-25-150(G)(3) (Supp. 1999).

In the instant case, Marlin voluntarily removed its sign by dismantling the structure in its entirety. Therefore, the sign permit was rendered void under S.C. Code Ann. § 57-25-150(G)(3) (Supp. 1999). Further, Marlin's rebuilding of the sign structure's support rendered the sign illegal under Regs. 63-350(C)(7) since the sign no longer was "substantially the same as it was on the effective date of the State law or regulations which rendered the sign nonconforming." Accordingly, in the absence of any other controlling law, the sign permit was required to be canceled.

2. Estoppel

Marlin argues that other controlling law exists to prohibit DOT from canceling the permit: the law of estoppel. A party claiming estoppel against a public body must show: (1) a lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) justifiable reliance upon the conduct of the party estopped; and (3) a prejudicial change in position. Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 298 S.C. 66, 378 S.E.2d 256 (1989). A governmental body is not immune from the estoppel doctrine where its officers or agents act within the proper scope of their authority, but "[t]he public cannot be estopped ... by the unauthorized or erroneous conduct or statements of its officers or agents which have been relied on by a third party to his detriment." Service Management, Inc. v. State Health and Human Services Finance Commission, 298 S.C. 234, 379 S.E.2d 442 (Ct. App. 1989).

In the instant case, the facts do not establish that DOT should be estopped from enforcing the applicable statutes and regulations. While it is not entirely clear what representations DOT employees made within the scope of their authority, the evidence establishes that DOT never represented to Marlin that the complete dismantling of the sign structure was legally permissible. Rather than relying upon DOT, Marlin relied on the opinion of its own contractor in making the decision to dismantle the second pole of the structure. Therefore, Marlin cannot satisfy the justifiable reliance factor of the standard for estoppel. Midlands Utility, Inc. v. South Carolina Department of Health and Environmental Control, 298 S.C. 66, 378 S.E.2d 256 (1989). Thus, DOT is not estopped from canceling Marlin's sign permit.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

The South Carolina Department of Transportation shall cancel sign permit number 07-38-884643.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

Dated: November 6, 2000

Columbia, South Carolina

1. Lee, former District # 7 Outdoor Advertising Coordinator, was training the new District Coordinator, Earl Hilton. Both were investigators and their duties involved issuing reports.